The Department of In-Justice?

Victims of toxic water contamination that plagued U.S. Marine Corps Base Camp Lejeune in North Carolina for decades might face yet another roadblock. Later this spring, the Supreme Court will consider an environmental contamination case that could have serious ramifications for Marine families and other victims of environmental disasters hoping to find justice through legal channels.

Unfortunately, the Department of Justice is not yet on the side of the victims. Among lower court documents for Waldburger v. CTS Corporation, the case involving the contamination of private property in North Carolina, is an amicus curiae, or “friend of the court” brief, filed by the U.S. Department of Justice (DOJ) in support of CTS Corporation—a known corporate polluter.

In the case that is now before the Supreme Court, DOJ is not focusing on correcting wrongdoing or ensuring the impartial administration of justice—it instead appears to be focused on preventing justice for Camp Lejeune victims.

The legal question before the Supreme Court in Waldburger is whether the statute of repose in North Carolina—a statute that cuts off legal rights if not acted on by a certain date after the defendant’s last action—is considered a “statute of limitations.” North Carolina has both a statute of limitations (3 years) and a statute of repose (10 years), laws that limit liability but have different parameters. Statutes of limitations are addressed in Section 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which stipulates that the federal statute of limitations regarding CERCLA preempts state statutes of limitations. This gives victims of toxic dumping a longer window in which to file a legal claim against the polluter—particularly important since many harmful effects of exposure to toxins may not manifest for decades.

CERCLA was enacted in 1980 to combat the harm caused by dumping of hazardous waste. It aims to put the burden of clean-up on the polluter. If the goal of the law is to hold polluters accountable, restricting responsibility to a 10-year window after the pollution would miss the point. Sometimes it takes years for the damage to health done by the pollution to become apparent.

The Supreme Court’s eventual decision on the Waldburger case, which the Fourth Circuit Court of Appeals decided in favor of Waldburger, directly impacts Camp Lejeune lawsuits. If the Court finds that CERCLA does not override statutes of repose, many of the Camp Lejeune cases could be dismissed.

Knowing this, the DOJ filed an amicus brief in support of CTS Corporation, explaining its interest in the case in opaque terms:

The United States also has a particular interest in the interaction of CERCLA with the North Carolina statute of repose because of ongoing litigation against the United States under the [Federal Tort Claims Act] involving allegations of contaminated drinking water at the Camp Lejeune Marine Corps Base in North Carolina.

The Project On Government Oversight has worked with truth-tellers and concerned Members of Congress to expose the contamination of Camp Lejeune’s drinking water that occurred between at least 1953 and 1987, as well as the government’s cover-up of the issue.

In 2012, Senator Patrick Leahy (D-Vt.) obtained and released documents that the Marine Corps and Navy had refused to make public. The documents were additional evidence of the massive cover-up. Shortly thereafter, Congress finally offered some relief to Marines and their families by passing a bill that provide some healthcare for the victims. That landmark legislation, the Janey Ensminger Act, is named for the daughter of Master Sergeant Jerry Ensminger, a retired Marine who served at Camp Lejeune. Ensminger lost his nine-year-old daughter, Janey, to leukemia while stationed at Camp Lejeune. He has spent years fighting to uncover the truth and obtain justice for the victims. When signing the bill into law, President Obama emphasized in his signing statement the nation’s responsibility to the troops, saying, “They protect our freedom, and it’s our obligation to do right by them.”

Unfortunately, it seems DOJ hasn’t gotten that memo. Referring to the contamination as merely alleged shows unwillingness to accept the facts and a disregard for the intentions of Congress and the commitment of the President himself.

President Obama’s statement that the Camp Lejeune Families Act “ends a decade-long struggle for those who serve at Camp Lejeune” has been seriously undermined by DOJ.

According to the DOJ in several Camp-Lejeune related lawsuits, the last action of the defendants—the U.S. Marine Corps and U.S. Navy—was in 1985, when contaminated wells were finally decommissioned. The DOJ argues that references to contaminated wells in 1984 and 1985 news articles (pp. 14 and 28) served as public notification of potential harm to public health. In these articles, however, environmental experts specifically stated that there had been no harm to public health and that the contamination had been contained. DOJ’s argument is absurd, of course, because even if the victims had seen the articles, the article contents would give the victims no reason to suspect injury or illness. If the DOJ has its way, victims would have had to file suits by 1995 (to comply with the 10-year statute of repose)—more than twelve years before Congress acknowledged the harm done to these Marine families and civilians. It was not until 2006 that the Department of the Navy was required to notify potential victims through an amendment to the National Defense Authorization Act.

Luckily, the DOJ has thus far been unsuccessful in attempts to use statutes of repose as grounds for dismissal of Camp Lejeune cases. One court order states plainly, “The Court cannot fathom a law that would require hundreds of thousands of plaintiffs to bring their claims before they even had opportunity to know they were harmed.” We expect the Supreme Court to see it the same way, but can’t be sure, especially if DOJ weighs in again on the wrong side.

Ensminger is appalled at how the DOJ intervened in the lower court case, adding insult to injury:

They’re using the Waldburger case as camouflage. The DOJ is taking a seemingly innocuous case and using it to shield itself from handling the Marine families that have been suffering since the water contamination at Camp Lejeune.

When DOJ is bedfellows with known polluters and actively fighting against justice for victims of military negligence, there’s something really wrong. It is time for the federal government to support these Marine families in their fight for justice. As the Supreme Court considers the case, we urge DOJ to right the wrong done in its lower court brief by weighing in on the side of Camp Lejeune victims and those affected by other environmental disasters. DOJ should make clear that CERCLA trumps any state law that might undermine the protections Congress intended. Camp Lejeune victims deserve the real justice they’ve been promised.

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Founded in 1981, the Project On Government Oversight is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.